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On November 18, 2015, the staff from the U.S. Commodity Futures Trading Commission’s (“CFTC”) Division of Swap Dealer and Intermediary Oversight issued a swap dealer de minimis exception preliminary report (“Preliminary Report”).

The Preliminary Report was issued pursuant to the SEC and CFTC joint regulation defining the term “swap dealer” and providing for a de minimis exception to the swap dealer definition. Under the regulation, a person shall not be deemed to be a swap dealer unless its swap dealing activity exceeds an aggregate gross notional amount threshold of $3 billion (measured over the prior 12-month period), subject to a phase-in period during which the gross notional amount threshold is set at $8 billion. Under the terms of the regulation, the phase-in period will terminate on December 31, 2017, and the de minimis threshold will fall to $3 billion, unless the CFTC sets a different termination date for the phase-in period or modifies the de minimis exception.

The Preliminary Report discusses:

  • Relevant statutory and regulatory provisions defining the term “swap dealer” and implementing the de minimis exception.
  • Data considered in preparing the Preliminary Report.
  • Policies underlying swap dealer registration and regulation and the de minimis exception that form the basis for evaluating the swap market data.
  • Data in light of alternative approaches to a de minimis exception.

Comments on the Preliminary Report must be submitted on or before January 19, 2016 and may be submitted electronically via the CFTC’s Comment Online Process. The staff will complete and publish for public comment a final report after considering the comments it receives on the Preliminary Report.

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Congress has replaced the TEFRA partnership audit rules with a new regime that redistributes the burdens of the audit process between partnerships and partners on the one hand and the IRS on the other, and also eliminates many rights that individual partners might previously have had in the audit process.  Even more troubling, these new rules create the possibility that absent careful attention and planning, the economic burden of partnership tax adjustments will be both increased and redistributed among the partners, both past and present, in a manner that does not reflect their economic agreement.  While the changes aren’t effective for quite some time (returns for taxable years beginning after December 31, 2017) and while there are likely to be further changes before the rules become effective, these new rules alter the landscape so drastically that partnerships and their partners will need to determine how to address them long before they become effective.


Read this article and additional publications at  You can also download a copy of the Client Alert.

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On December 1, 2015, the Securities and Exchange Commission (SEC) charged GAW Miners, LLC (“GAW Miners”), ZenMiner, LLC (“ZenMiner”) and Homero Joshua Garza (“Garza”) the managing member of both GAW Miners and ZenMiner (together the, “Defendants”) with fraud under (i) Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and (ii) Section 17(a) of the Securities Act of 1933 (“Securities Act”). The Defendants were also charged with engaging in the offer and sale of unregistered securities under Sections 5(a) and 5(c) of the Securities Act for selling $20 million worth of shares in their virtual currency digital mining contract called a “Hashlet”.

The charges stem from the Defendants’ operation as a virtual currency “miner” which uses computing power to be the first to solve complex algorithms. The first virtual currency miner to solve a complex algorithm that confirms a transaction is rewarded with newly-issued bitcoins by the bitcoin protocol.

While virtual currency mining is not illegal, the SEC found:

  • Hashlets were touted as always profitable and never obsolete and had more than 10,000 investor purchases.
  • The Hashlet contract purportedly entitled the investor to control a share of computing power that GAW Miners claimed to own and operate while Hashlets were depicted in marketing materials as a physical product or piece of mining hardware.
  • GAW Miners directed little or no computing power toward any mining activity and misled investors to believe they would share in returns.
  • Garza and his companies owed investors a daily return that was larger than the actual return they were making on their limited mining operations because they sold far more computing power than they owned.
  • Investors were paid back gradually over time with “returns” out of funds collected from other investors.

The Press release is available HERE.

A full copy of the SEC order is available HERE.